CHICAGO – Anti-abortion activists say they are pleased a federal judge has recognized what they called consistently biased treatment at the hands of Chicago Police enforcing the city's so-called abortion clinic "bubble zone" rules, but they said they intend to appeal the judge's findings that the ordinance is constitutional.
Early in January, U.S. District Judge Amy J. St. Eve said that anti-abortion activists could move forward with their challenge of how the city has enforced an ordinance that allows a protective “bubble zone” around patients visiting an abortion clinic.
St. Eve allowed the rules to stand, but cleared the plaintiffs to pursue another aspect of their lawsuit, saying enforcement of the ordinance by police officers showed signs of confusion or outright bias.
Thomas Olp, senior counsel and co-executive director of the Thomas More Society, and co-counsel Jason Craddock, also of the Thomas More Society, represent a plaintiff (the Pro-Life League) in the case.
"My reaction (to the ruling) was, number one, we were very happy with the continuation of the prosecution of this case. I wanted the facial challenge to be sustained,” Olp said, but the court couldn’t find its way around the U.S. Supreme Court's decision in Hill v Colorado, involving a Colorado "bubble zone" law the court upheld in 2000. Olp said he felt the judge was uneasy granting a ruling on an issue the Supreme Court failed to directly address.
The 2009 Chicago ordinance, largely based on the Colorado law ratified by the Supreme Court, was challenged by anti-abortion plaintiffs in August 2016 using the precedent set by a Supreme Court case from 2014, McCullen v Coakley.
In Hill. the Supreme Court said the government had an interest in protecting the emotional well-being of people seeking medical treatment by eliminating the concept of a heckler’s veto and in using buffer zones in achieving that protection. Despite the targeting of anti-abortion advocates by the law, the court determined that the spirit of the law was content-neutral.
In a dissenting opinion, former Justice Antonin Scalia wrote that the majority’s decision that the law was ‘content neutral’ was incorrect, because the Colorado law was specifically designed to eliminate the protesting, counseling and educating rights of a select group of citizens.
“I have no doubt that this regulation would be deemed content-based in an instant,” Scalia wrote, “if the case before us involved antiwar protesters, or union members seeking to ‘educate’ the public about the reasons for their strike … But the jurisprudence of this Court has a way of changing when abortion is involved.”
McCullen, decided four years after Hill, said buffer zones substantially burdened free speech in an unjustified manner and that, if crafted to combat the activities and speech of a specific group, they were not content-neutral.
Anti-abortion advocates like the Thomas More Society, the Pro-Life Action League and the Live Pro-Life Group, as well as the American Civil Liberties Union of Illinois, have strongly agreed with this reasoning.
“We feel this is a content-based law,” Olp said of the Chicago ordinance, “because it talks about advocacy as opposed to just being (present).”
“The whole law was passed at the behest of Planned Parenthood,” Olp asserted of the ordinance, saying a former Chicago alderman, Vi Daley, "admits it.”
Olp stated that his team relied on the applicability of McCullen over Hill because previous legal decisions indicated the court could not focus on the emotional reaction of a listener in determining its ruling, but was charged with protecting the right of free speech that the Constitution guaranteed the speaker.
The plaintiffs sued the city of Chicago, Mayor Rahm Emanuel, the police superintendent and the transportation commissioner alleging that, in the spirit of McCullen, the defendants had violated their First Amendment right of free speech and their Fourteenth Amendment right to equal protection under the law by continuing to abide by the ruling of Hill.
However, Judge St. Eve failed to be convinced of McCullen’s primacy, allowing the ordinance to remain largely intact.
Like the Colorado law, Chicago’s rule created an eight-foot buffer around a patient who was within close proximity to a clinic entrance; in Chicago’s case, the proximity to the entrance was originally planned to be within 50 feet as compared to Colorado’s allowance for 100 feet. The legislative attempt to create that 50-foot zone, however, did not survive the legal litmus test.
“When (the city) first introduced this ordinance, there were two parts to it,” Olp said . “The first created a 50-foot buffer. That is clearly unconstitutional. And so they stripped that out. When they had a hearing before Human Relations Committee, right on that morning (Sept. 9, 2016) they came in with a substitute that stripped out that 50-foot buffer and put in the eight-foot bubble.”
Proponents of the bubble zone state that the buffer protects patients from harassment and physical intimidation
Olp countered that no such incidents were reported to have occurred in Chicago and told the court that this fact undermined the need for the Colorado-style bubble zone.
“We raised this issue but (the court) said we did not have adequate basis to raise a distinction between the Colorado and Chicago statutes,” Olp said. “So, hopefully, we can correct that and get another bite at the apple.”
Plaintiffs in the Chicago case alleged police enforcing the ordinance have mistreated activists outside abortion clinics and wrongly arrested others.
Olp said Chicago Police have made a habit of applying the law only to anti-abortion advocates and counselors. He hypothesized that this may be because police officers are unsure of how to enforce this law, so they tell those on the anti-abortion side to stay 50 feet away from the clinic entrance, seemingly to comply with the 1994 federal Freedom of Access to Clinic Entrances (FACE) Act.
However, anti-abortion activists have been particularly rankled by officers' seeming deference to so-called patient escorts provided by the clinic, who Craddock said should also not be allowed within eight feet of women entering the clinic.
"But by practice they do," Craddock said.
Olp said the anti-abortion plaintiffs intend to appeal the ruling on the constitutionality, but are waiting on the judge to rule on their request for a preliminary injunction.
If an injunction is denied, Olp said, they would appeal to the U.S. Seventh Circuit Court of Appeals.
“If we win, we force them to apply the law in a non-discriminatory way," he said.